IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
May 22, 2012
MICHAEL SHAMES; GARY GRAMKOW, ON BEHALF OF THEMSELVES AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED, PLAINTIFFS,
THE HERTZ CORPORATION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
AMENDED ORDER PRELIMINARILY APPROVING SETTLEMENT, APPOINTING CLASS CERTIFYING SETTLEMENT CLASS, REPRESENTATIVE AND LEAD COUNSEL, AND PROVIDING FOR NOTICE [Doc. No. 310]
Having reached settlement of the instant action (the "Litigation"), Plaintiffs now seek preliminary approval of the settlement pursuant to Federal Rule of Civil Procedure 23(e), certification of a settlement class, appointment of class representatives and lead counsel, and provisions for class notice. Plaintiffs' motion includes an executed settlement agreement, which they refer to as the Stipulation of Settlement dated May 15, 2012 (the "Stipulation"), which, together with the exhibits annexed thereto, sets forth the terms and conditions for a proposed settlement of the Litigation.*fn1 [Exh. A to Motion for Preliminary Approval, Doc. No. 310-2.] The Court GRANTS Plaintiffs' motion as set forth below.
1. The Court preliminarily APPROVES the Stipulation and the settlement set forth therein, subject to further consideration at the Final Approval Hearing described below.
2. The Court certifies a Class, for settlement purposes only, defined as: "all Persons (other than those Persons who timely and validly request exclusion from the Class) who rented a car directly from a Rental Car Defendant for pick up at a California Airport Location during the period from January 1, 2007 through November 14, 2007, and were charged and paid to the Rental Car Defendant an Airport Concession Fee, Tourism Commission Assessment Fee, or both, for that rental car as a separate line item or items on their invoices. Excluded from the Class are:
(i) rentals made pursuant to a pre-existing agreement between a business or governmental entity and a Rental Car Defendant pursuant to which the rental charge was determined; and (ii) rentals in which the customer paid a package price to a third party tour operator or on-line booking agency rather than a Rental Car Defendant. Also excluded from the Class are the Defendants, the directors, officers, subsidiaries, and affiliates of Defendants, any person, firm, trust, corporation, officer, director or other individual or entity in which any Defendant has a controlling interest, and the legal representatives, affiliates, heirs, successors-in-interest or assigns of any such excluded person, Related Parties as well as any judges or mediators involved in the Litigation (including the Hon. Michael M. Anello, Magistrate Judge McCurine, and the Hon. Ronald Sabraw (ret.))."
3. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and solely for the purposes of settlement, the Court preliminarily certifies Gary Gramkow as Class Representative ("Class Representative") for the Class and appoints Hulett Harper Stewart LLP, Dennis Stewart and Sullivan Hill Lewin Rez and Engel, Donald G. Rez as Lead Counsel.
4. Solely for purposes of the settlement, the Court preliminarily finds that the prerequisites for a class action under Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure have been satisfied in that: (a) the members of the Class are so numerous that joinder of all Class Members in the Litigation is impracticable; (b) there are questions of law and fact common to the Class which predominate over any individual questions; (c) the claims of the Class Representative are typical of the claims of the Class; (d) Class Representative and his counsel have fairly and adequately represented and protected the interests of all of the Class Members; and (e) a class action for purposes of settlement is superior to other available methods for the fair and efficient adjudication of the controversy, considering (i) the interests of the members of the Class in individually controlling the prosecution of the separate actions; (ii) the extent and nature of any litigation concerning the controversy already commenced by members of the Class; and (iii) the desirability or undesirability of continuing the litigation of these claims in this particular forum.
5. A hearing (the "Final Approval Hearing") shall be held before this Court on October 29, 2012, at 2:30 p.m., at the United States District Court for the Southern District of California, 940 Front Street, San Diego, California 92101, to determine whether the proposed settlement of the Litigation on the terms and conditions provided for in the Stipulation is fair, reasonable, and adequate to the Class and should be approved by the Court; whether a Judgment as provided in ¶ 1.17 of the Stipulation should be entered and to determine the amount of fees and expenses that should be awarded to Plaintiffs' Counsel and whether to award a service award payment to the Class Representative. The Court may adjourn the Final Approval Hearing without further notice to the Class Members.
6. The Court approves, as to form and content, the Notice of Proposed Settlement of Class Action, substantially in the forms of Exhibits A-1 through A-6, as appropriate, (individually or collectively, the "Notice"), and finds that the e-mailing or mailing and distribution of the Notice and publishing of the Notice substantially in the manner and form set forth in ¶ 7 of this Order meet the requirements of Federal Rule of Civil Procedure 23 and due process, and is the best notice practicable under the circumstances and shall constitute due and sufficient notice to all Persons entitled thereto.
7. The firm of Kurtzman Carson Consultants ("Administrator") is hereby appointed to supervise and administer the notice procedure as well as the processing of claims as more fully set forth below:
(a) The Administrator shall make reasonable efforts to identify all Class Members based on the rental data provided by the Rental Car Defendants, as set forth in the Stipulation. No later than July 6, 2012 (the "Notice Date"), the Administrator shall cause a copy of the Notice, substantially in the forms annexed to this Order as Exhibit A-1 or A-3, to be e-mailed or mailed by standard-class mail to all Class Members who are identified;
(b) No later than July 27, 2012, the Administrator shall cause the Publication Notice annexed to this Order as Exhibit A-4 to be published in accordance with the Plan for Publication Notice annexed to this Order as Exhibit B;
(c) No later than October 22, 2012, Lead Counsel shall cause to be served on Defendants' counsel and filed with the Court proof, by affidavit or declaration, of such mailing and publishing; and,
(d) Provided the settlement is finally approved by this Court, then subsequent to such approval and no later than 60 days before the expiration of the Election Period, the Administrator shall cause the Supplemental Notice, substantially in the form annexed to this Order as Exhibits A-2 and A-5, to be provided as set forth in the Stipulation.
8. All Class Members shall be bound by all determinations and judgments in the Litigation concerning the settlement, whether favorable or unfavorable to the Class.
9. Class Members who wish to participate in the settlement shall complete and submit, electronically on the Administrator's settlement website or by mail, an Election of Benefits Form, in accordance with the instructions contained in the Notice, on the Administrator's settlement website, or both. Unless the Court orders otherwise, all Election of Benefits Forms must be submitted electronically or postmarked no later than January 25, 2013. Any Class Member who does not timely submit an Election of Benefits Form within the time provided shall be barred from receiving the benefits of the settlement, unless otherwise ordered by the Court.
10. Any Class Member may enter an appearance in the Litigation, at their own expense, individually or through counsel of their own choice. If they do not enter an appearance, they will be represented by Lead Counsel.
11. Any Person falling within the definition of the Class may, upon request, be excluded from the Class. Any such Person must submit to the Administrator a request for exclusion ("Request for Exclusion"), postmarked no later than October 1, 2012. A Request for Exclusion must state: (a) the name, address, and telephone number of the Person requesting exclusion; and (b) that the Person wishes to be excluded from the Class. All Persons who submit valid and timely Requests for Exclusion in the manner set forth in this paragraph shall have no rights under the Stipulation, shall not share in the distribution of the benefits of the settlement, and shall not be bound by the Stipulation or the Judgment entered in the Litigation.
12. Any Class Member who does not properly and timely submit a Request for Exclusion as set forth above shall be included in the Class and shall be bound by all the terms and provisions of the Stipulation, whether or not such Class Member shall have objected to the settlement and whether or not such Class Member makes a claim upon or participates in the settlement.
13. Any Class Member may appear and show cause, if he, she or it has any, why the proposed settlement of the Litigation should or should not be approved as fair, reasonable, and adequate, why a judgment should or should not be entered thereon, why attorneys' fees and expenses should or should not be awarded to Plaintiffs' Counsel or why an service award should or should not be made to the Class Representative; provided, however, that no Class Member or any other Person shall be heard or entitled to contest such matters, unless that Person has filed written objections with the Clerk of the United States District Court for the Southern District of California on or before October 1, 2012. Any Class Member who does not file objections shall be deemed to have waived such objection and shall be foreclosed from making any objection to the fairness or adequacy of the proposed settlement as set forth in the Stipulation, or to the award of attorneys' fees and expenses to Plaintiffs' Counsel, or to any service award to the Class Representative unless otherwise ordered by the Court.
14. The parties shall file briefs and supporting documents in support of the settlement and any application for attorneys' fees no later than September 10, 2012. Any party may concurrently file a 5-page maximum objection to the joint Final Approval Hearing briefs. A response, if any, to objections to the settlement and any application for attorneys' fees shall be filed no later than October 15, 2012.
15. At or after the Final Approval Hearing, the Court shall determine whether the application for attorneys' fees or payment of expenses and service awards to the Class Representative shall be approved.
16. All reasonable expenses incurred in identifying and notifying Class Members, as well as the Administrator's other responsibilities as specified herein or in the Stipulation, shall be paid as set forth in the Stipulation. In the event the settlement is not approved by the Court, or otherwise fails to become effective, neither Plaintiffs nor any of their counsel shall have any obligation to repay any amounts incurred or properly disbursed pursuant to ¶¶ 4.7 or 5.5 of the Stipulation.
17. Neither the Stipulation, nor any of its terms or provisions, nor any of the negotiations or proceedings connected with it, shall be construed as an admission or concession by the Defendants of the truth of any of the allegations in the Litigation, or of any liability, fault, or wrongdoing of any kind and neither the Stipulation nor any submission by any party in connection with the motion(s) for preliminary or final approval or application for attorneys fees and expenses or appeal therefrom or any related motions or proceedings may be used in this Litigation or in any other proceeding for any purpose other than as specified in the Stipulation.
18. The Court reserves the option to adjourn the date of the Final Approval Hearing without further notice to the Class Members, and retains jurisdiction to consider all further applications arising out of or connected with the proposed settlement. The Court may approve the settlement, with such modifications as may be agreed to by the Settling Parties, if appropriate, without further notice to the Class.
19. If the Stipulation and the settlement set forth therein is not approved or consummated for any reason whatsoever, the Stipulation and settlement and all proceedings had in connection therewith shall be without prejudice to the rights of the Settling Parties status quo ante.
IT IS SO ORDERED.
[Editor's Note: Exhibits and Attachments Unavailable]